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Legislative and Regulatory Reform Bill

This is a rather complicated group, headed by my noble friend Lord Norton’s Amendment No. 91, with a large number of amendments and a diverse collection of noble Lords putting their names to each. We have a number of amendments down on behalf of the Conservative Front Bench, some of which seem to have the support of the Liberal Democrats. I notice that Amendment No. 95 also has the Government’s support. The noble Lord, Lord Goodhart, has been good enough to say that he likes Amendment No 94A tabled in the name of my noble friend Lord Kingsland, although he has not yet put his name to it. I suspect that it may be necessary for certain conversations to take place between now and Report, and we will have considerable time to decide how to proceed with these amendments at a later stage of the Bill. At this stage, it may be worth setting out what is behind our amendments in this group. We have given notice that we intend to oppose the Question that Clause 19 stand part of the Bill, and we have tabled Amendments Nos. 94A and 95, and added our names to Amendments Nos. 92, 97, 108 and 111. I shall speak first to those amendments and then to the Question on whether Clause 19 should stand part. However, I assure the Minister that I have no intention of dividing the Committee on that issue. Amendments Nos. 92, 97, 108 and 111 turn what is merely a recommendation by a committee of either House into an absolute veto. In the debate in another place on the appropriate parliamentary procedureto be applied to these orders, the words ““recommendation”” and ““veto”” were sometimes used interchangeably. Noble Lords should be clear that, at present, the committee’s only power is to recommend that no further proceedings be taken on any draft order. Either House can then by resolution reject that recommendation and the order can go through. We on these Benches think that that is not a satisfactory safeguard. We believe that the inherent potential for abuse in these order-making powers means that the committee should be given the power to reject the orders. To leave its recommendations vulnerable to a vote of either House does not provide constitutionally sound protection. I should modify my support for these amendments by saying that I am aware of the argument against turning a committee’s recommendations into a veto: it deprives the House of an opportunity to decide for itself whether an order is appropriate. I also appreciate that it might make a committee more timid in its remarks and recommendations if it felt that it was the final arbiter of what should happen to an order. In our discussions on the substantive constitutional safeguards that should be in the Bill, the Government have not yet made any concessions, and that is disappointing. In the absence of such concessions, bolstering the recommendation of the committee is the only option left. However, we believe that it is a last resort. We fully accept that if other constitutional safeguards are incorporated into the Bill, the necessity for an absolute veto might be lessened. The committee’s composition would be an important factor. The convention in this House is that the Government do not enjoy a majority in committees but, as we all know, the arrangements in another place are different. By convention, the usual channels decide to which committee legislation or subordinate legislation should be referred. I would be grateful to hear from the Minister the kind of committee he envisages will deal with these orders. I imagine that the expectation is that the committee chaired by the noble Lord, Lord Dahrendorf, would consider these orders, but I put it to the Minister that there is a case for these orders to be considered by a Joint Committee of both Houses. Amendment No. 94A proposes an alternative way of strengthening the committee’s recommendation that no further proceedings should be taken on a draft order. Currently there is nothing to prevent an order which the committee has considered inappropriate being retabled in the same Session of Parliament. As we made clear when discussing the previous group, there needs to be a means of investing the committee with a more powerful sanction than merely the recommendation in Clause 15. If the Minister knew that it was absolutely critical to get the terms of the order drafted appropriately in the first place, and that if it was not he would risk losing the opportunity for the next two years of getting the order through, then it might act as a disincentive for a Minister to introduce an order that pushed the boundaries of what might or might not get past the committee. I turn now to the Question on whether Clause 19 should stand part of the Bill. We think that the Bill should not be allowed to proceed further without consideration of the question of the appropriateness of the super-affirmative procedure. This procedure was first introduced in the 2001 Act. Although it made a brief appearance in Part 31 of the Company Law Reform Bill, the Government then decided to remove such procedures from that legislation. That decision seemed to be on the basis of a recommendation of the Delegated Powers and Regulatory Reform Committee in its ninth report. At paragraph 40, the committee considered what it called the ““proportionality of procedure””. It stated: "““Although not taking much time on the floor of the House, the mechanism proposed is no quicker than a bill…For a small measure, it is no more proportionate than a short bill, particularly when preparation of the supporting documentation is taken into account. But we do not see how the timetable could be abridged without violating the safeguards which this process is intended to give””." Surely the same arguments could be applied to any new regulatory reform orders under this Act. No doubt, the Government will try to say that the super-affirmative procedure ensures that any draft order will receive added scrutiny and is at least an improvement on the affirmative procedure. However—try as the Government might to dress up the affirmative procedure as something more onerous with the prefix of ““super”” and the added 60 days scrutiny by committee—they are still proposing to reform primary legislation by an order introduced as a statutory instrument rather than by primary legislation. The committee said in paragraph 38 of its report that, "““whatever the Government’s intention as to amendability, it is impossible for the two Houses to reconcile any proposed amendments due to the fact that the instrument is considered in parallel by the two Houses. In this regard, it cannot be considered a substitute for a bill””." That is the key point and endorses everything I have said. I am interested to hear from the Minister how that problem can be overcome.